DETROIT -- Yesterday, U.S. District Court Judge Anna Diggs Taylor layed the smackdown on the Bush administration's illegal, warrantless, poorly-justified wiretapping program. In her 44-page opinion in the case ACLU, et al. v. NSA, et al., Judge Taylor granted the government's request for dismissal of certain "state secrets" evidence, but nevertheless said that the program itself was unconstitutional.

Judge Taylor also laid to rest the bogus "unitary executive" theory, which holds that the president has the last word in federal government matters -- above and beyond the objections of the legislative branch (and while, theoretically, the "unitary executive" would also be superior to the judicial branch, we have yet to see that in action). The "unitary executive" is in direct conflict with the Constitution's separation of powers doctrine, established in the delegation of different powers to each branch of government in three different articles. The unitary executive theory holds that the president is at once enforcer, author, and interpreter of the law: he acts as all three branches -- in total disregard of the Constitution.

The government's primary case in arguing for the unitary executive -- as it has with ACLU v. NSA -- has been Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), in which President Truman attempted to nationalize a striking metal-working company on national security grounds. The Supreme Court had a good laugh at that and totally rebuked Truman for attempting to exercise a power that was not his to exercise. Out of this case comes Justice Jackson's concurring opinion, the one that the government has used to justify encroachments of presidential power into other branches of government. Jackson laid out a model for instances in which presidential power might conflict with Congressional power, and in each instance, he theorized who should win each fight, and why:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

The government has repeatedly argued that the president's authority to engage in warrantless wiretapping comes directly from the post-September 11 "Authorization for the Use of Military Force" (AUMF). The AUMF, argues the government, through its "all necessary and appropriate force" clause, gives the president the authority to conduct warrantless wiretapping because he feels it to be "necessary and appropriate" for fighting terrorism. However, the government assumes that it is not in question that Congress authorized such a thing in its AUMF; indeed, the U.S. Supreme Court has taken steps to limit the scope of the president's power under the AUMF. In Hamdan v. Rumsfeld, 05-184, the Court ruled that ad hoc military tribunals were illegal because "[t]he military commission at issue is not expressly authorized by any congressional Act." In this sentence, the court dismissed a Bush argument that the AUMF implicitly granted him a power by requiring that the action in question by explicitly authorized. Judge Taylor agrees, observing that "this court must note that the AUMF says nothing whatsoever of intelligence or surveillance."

And, so, there is some issue as to where the president's powers currently lie within Justice Jackson's model. The government argues that the president has been acting pursuant to situation one, where the president has the authorization of Congress. The Supreme Court, and other federal courts, disagree. Judge Taylor believes that the president is currently living his life in situation three, as "[i]n this case, the President has acted, undisputedly, as FISA forbids [by failing to get a warrant or meet certain emergency surveillance requirements]. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained."

Also note that, to sustain its case that the president has supreme control of the world, the government is using a concurring opinion in a case in which the court decided that the president did not have the supreme authority to control the world. Yes, in Youngstown, the court ruled that President Truman lacked the authority to nationalize the Youngstown Sheet & Tube Co. They're really reaching, aren't they?

Judge Taylor is nobody's fool, and she gives the theory of the "unitary executive" the sound beating it deserves. This is as sexy as federal court opinions get:

Article II of the United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.

The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well. In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. ...” Again, in Home Building & Loan Ass’n v. Blaisdell, we were taught that no emergency can create power.

Finally, although the Defendants have suggested the unconstitutionality of FISA, it appears to this court that that question is here irrelevant. Not only FISA, but the Constitution itself has been violated by the Executive’s TSP [the surveillance program]. As the court states in Falvey, even where statutes are not explicit, the requirements of the Fourth Amendment must still be met. And of course, the Zweibon opinion of Judge Skelly Wright plainly states that although many cases hold that the President’s power to obtain foreign intelligence information is vast, none suggest that he is immune from Constitutional requirements.

The argument that inherent powers justify the program here in litigation must fail.

And, so, Judge Taylor issued an injunction enjoining the government from engaging in its surveillance program. She ended her opinion with a beautiful afterword by Justice Earl Warren:

Implicit in the term "national defense" is the notion of defending those values and ideas which set this Nation apart. ... It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the Nation worthwhile.

The government's reaction to the opinion was predictably bad. Attorney General Alberto Gonzales said that the opinion was a wrong one, and that the government would appeal the case to the Sixth Circuit Court of Appeals in Cincinnati (which has jurisidiction over federal court appeals in Ohio, Michigan, Kentucky, and Tennessee).

They should make bubble gum cards for federal court justices. "I'll trade you two James Whittemores for a Sandra Day O'Connor!"